While dining recently at a Mexican restaurant in Washington, DC, a friend of activist Amanda Werner recognized that Department of Homeland Security Secretary Kirstjen Nielsen was dining there as well. The friend “immediately texted Werner: ‘DHS Secretary Nielsen is having dinner at MXDC. Can you tweet on your account? Get activists here.’”
Werner put the word out on Twitter and, within minutes, a handful of activists showed up, including members of the Democratic Socialists of America. When they entered the restaurant and saw Nielsen, they confronted her about the Trump administration's "zero tolerance" policy on immigration. “How dare you spend your evening here eating dinner as you’re complicit in the separation and deportation of over 10,000 children,” one protester shouted. Others chanted, “Abolish ICE! Abolish ICE!” “If kids don’t eat in peace, you don’t eat in peace!,” and “Kirstjen Nielsen, you’re a villain, locking up immigrant children.” After about fifteen minutes, the activists left.
Let us reframe the incident in First Amendment terms: the activists gathered and assembled peaceably at MXDC. While there, they spoke to a state actor (Kirstjen Nielsen) who, according to DHS press secretary Tyler Q. Houlton, was in the middle of "a work dinner." They specifically petitioned her for a redress of grievances regarding government action over which she has authority (immigration). After they petitioned this state actor, the activists peaceably disbanded.
Rather than acknowledge the fact that activists vigorously practiced First Amendment rights, many critics chose instead to view this incident (and similar protests against both Sarah Huckabee Sanders and Stephen Miller) as an act of “incivility.” Illustrative of this tendency were the editors of The Washington Post who, ostensibly exercising the First Amendment freedom of the press, complained in “Let the Trump team eat in peace” that:
“It’s not a new tactic for protesters of one sort or another to target a public official’s home or private life. But never-at-rest social media have blurred the line between work hours and private time. Cellphone cameras make it ever easier to intrude and broadcast….We… would argue that Ms. Huckabee, and Ms. Nielsen and Mr. Miller, too, should be allowed to eat dinner in peace. Those who are insisting that we are in a special moment justifying incivility should think for a moment how many Americans might find their own special moment. How hard is it to imagine, for example, people who strongly believe that abortion is murder deciding that judges or other officials who protect abortion rights should not be able to live peaceably with their families?”
Let’s be clear about what is happening here. In the name of civility, the editors of The Washington Post willingly reduce activists’ exercise of First Amendment rights to a mere “tactic.” Indeed, the editors sacrifice these rights to civility (which is not a constitutional right), as indicated by the fact that the words “First Amendment” do not appear anywhere in their troubling editorial. Having thus dispensed with those inconvenient rights, the Post’s editors then proffer a critique through which they frame as illegitimate resistance to unchecked power that does not conform to certain (class-based) standards of taste and order – standards that, coincidentally enough, would make the people’s form of resistance palatable to the state.
Hence, activists must be polite. They must respect public officials’ private time and desire for peace – even when those officials are using that private time and peace to conduct state business that affect us all. Activists must protest during work hours and thus give resistance to state power a “rest.” And by all means, activists must not be disruptive.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
That is our First Amendment.
The constraints that purveyors of civility would impose upon protesters’ exercise of the freedom of speech and the freedom of assembly are limitations that the constitution’s framers would have scarcely recognized, let alone constitutionalized. Indeed, the framers would have viewed as suspect a newspapers’ (or politician’s) implication that citizens can only gather in a polite, orderly, and convenient way. After all, they condoned colonial era rioting, tarring and feathering, the Boston Tea Party, and armed revolution. They would have considered those who insist on such constrained protest in the face of tyranny, distinctly sympathetic to the Crown, rather than committed to the aspirations of a free people.
They would have been right.